Pages

Categories

Archives

EVENTS

A woman married to another woman owed almost $400,000 in estate taxes upon the death of her wife because DOMA prevents the federal recognition of her marriage, so she filed a case arguing that this was illegal discrimination. This case was just reviewed in federal court by Chief Judge Dennis Jacobs, a super conservative judge.

Shockingly, not only did he (and the court) rule DOMA unconstitutional, his opinion includes language that states that LGBT should be treated with heightened scrutiny under the Constitution. This basically means that the court recognizes that LGBT are a historically marginalized group who deserves special consideration when having laws directed at them.

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Not only is DOMA unconstitutional, but ALL attempts to discriminate against gay people have to pass heightened scrutiny — something that law has, somewhat shockingly, completely failed to establish.

The hope now is that SCOTUS will adopt the same reasoning. They should because it is completely reasonable, but that doesn’t always mean anything. If SCOTUS did accept this reasoning and adopt it, it would functionally mean that all discrimination on the basis of orientation would be illegal.